At last night’s meeting, a member challenged the $400 special assessment for street repairs approved at this year’s annual member meeting based on the management company’s failure to provide proper notice to members. After a review of the formal requirements, the Board noted that the official Annual Meeting Notice omitted the inclusion of a special assessment, which the Board confirmed invalidates the vote. In advance of next October’s Annual Meeting, the Board plans to provide homeowners with information about the needs to repair and do maintenance on our streets, the costs, and a formal proposal for a special assessment.
This year’s Annual Meeting was one of the highest attended since the completion of Phase II, where 70% of the Membership was represented, either in person or by proxy. A new Board was voted in and many motions were considered.
- The Board Officers for the 2015/2016 term are
- Shana Nalls, President
- Casey Berley, Vice President
- Rhonda Smith, Treasurer
- Brad Peters, Secretary
- Architectural Review Committee
- David Hoye, Chairman
- David Fuller
- Ken Daulong
- The treasurer’s report is posted below under Budget 2015/2016.
- President’s Report
- Bob Steinhagen, outgoing president, spoke about the many accomplishments of the Board, which include:
- Improved communications with homeowners including a new website, the newsletters, and email correspondence for important matters.
- Amending the governing documents of the HOA, which include the CC&Rs & Bylaws to bring the Association into compliance with new state standards, through a Ballot initiative that the Board created & developed, as well as many new policies, most of which were state mandated.
- Improvements to the neighborhood streets, which include the opportunity for homeowners to consider a Special Assessment for preventative maintenance and major repairs to the front entrance of the development.
- The decision to place a mailbox at the front entrance of the neighborhood for HOA related matters, which included a detailed explanation of the option between a decorative metal mailbox, which, while it would not conform to neighborhood standards, would be more cost effective verses a brick mailbox, where homeowners voted, via a poll posted on the HOA website, for the brick mailbox.
- Mr. Steinhagen also thanked the current board, Vice President, Brad Peters, Treasurer, Shana Nalls, Secretary, Glenna Brown, and the ARC, Ken Daulong, David Fuller, & David Hoye, for their tireless support to help reinvigorate homeowners confidence in the Board through their tireless and dedicated efforts.
- Bob Steinhagen, outgoing president, spoke about the many accomplishments of the Board, which include:
- A Motion to post a “No Soliciting” sign at the front entrance to the neighborhood passed, with the understanding that neighborhood school children may still go door to door to raise funds for their schools.
- Motion to remove the two stop signs on Pheasant Hill failed by just four votes.
- A Motion to sell the lot that currently is the park in the community and use the proceeds to repair the road near the entrance of Quail Creek failed overwhelmingly, with just six votes in favor of the motion.
- A Motion to rename Mockingbird Hill Lane to Clint Packer Way was withdrawn.
- A Motion for the Association to, on January 1, 2016, levy a Special Assessment of $825.00 for neighborhood street repairs and preventative maintenance, which shall either be due in full on the 31st of the same month or may be paid in up to three annual installments of not less than $275.00, where each installment comes due on the 31st of January of the installment year passed overwhelmingly (93%), with just three votes against the motion.
Tonight, the Board voted by unanimous consent to approve a proposal by Midway Sealcoating & Striping to remove and replace a total of 1,250 square feet of street that runs along both sides of the median at the entrance of our development. The repairs will be made in two phases, to keep open one lane for ingress & egress.
The dates of construction will likely be late August or early September, but that information will be posted on this website once we are provided notice.
The cost for these repairs is $15,000, where a little over $11,000 of our $22,000 capital reserves will be used in addition to $4,000 that was budgeted this year for street repairs.
It should be noted that these repairs are not patches, but entire sections. Two of the patches that were installed two years ago and are now beginning to falter, will be removed as part of this repair.
Not included in this repair is the third large-patched section that runs farthest away from the entrance, which is estimated to cost another $6 to 8 thousand. The Board opted against including this section at this time because to do so would deplete our capital reserves to a dangerous level, should a costly emergency occur.
Once this, the most immediate concern, which impacts all homeowners, is addressed, the issue of preventative measures (primarily filling in cracks along most all of the streets) will be tackled.
The total cost for the proposed preventative repairs is $25, 442.40, plus another $6 to $8 thousand to finish the front entrance repair.
It is likely that either a special assessment of between $350 to $500 or a $100 increase to the annual assessment will be proposed during the October 6 Annual Membership Meeting, to meet these needs. This gives homeowners the right to consider and propose options and possible decide how we move forward.
The amended governing documents that were approved by vote of the Homeowners were recorded with the Rockwall County today, which means that they are now valid & enforceable. Homeowners will be receiving paper copies of these documents within sixty (60) days.
It’s official! The Homeowners have spoken!
During tonight’s Board meeting, the votes in the Ballot Initiative were tallied and recorded resulting in at least sixty-seven percent (67%) of all homeowners in Quail Creek approving all amendments to the CC&Rs (Initiative #1) except for Amendments to Articles 4.8b, 4.8h, & 8.2. Seventy-one percent (71%) of homeowners also approved the newly amended Bylaws (Initiative #2). The amendment loosening the garbage can restriction (Initiative #3A) passed with sixty-nine percent (69%) support and the amendment to loosen the restriction on signs (Initiative 3B) also passed, capturing seventy-five percent (75%).
However, sixty-seven percent (67%) of homeowners rejected the amendment loosening the trailer restriction (Initiative #3C), where it garnered just thirty-three percent (33%), or one-third(1/3) homeowner support. Of the sixty-seven percent, twenty-seven percent (27%) voted to tighten the restriction with the rest preferring to keep the restriction as is. What is clear from the vote is that the overwhelming majority of homeowners do not support the storage of trailers in Quail Creek.
State law dictates that for any amendment to a declaration to pass it must have 67% approval of all homeowners (not those who vote, but all homeowners). Therefore, anyone that did not submit a ballot effectively voted to reject the amendments being proposed.
Remarkably, sixty-one out of the sixty-nine eligible members of the Association participated in this initiative including eleven of the twelve homeowners in Phase 1!
As part of the effort to protect and ensure the integrity of the process to tally the vote, all ballots were scanned & digitized. Only the voter signature pages (that include the homeowner’s name and ballot ID number) will be kept from distribution (both the digital files & hard copies of these signature pages will be kept on file indefinitely).
The Board hopes to have the revised CC&Rs & Bylaws recorded with Rockwall County by the end of next week, which will make the instruments official. Copies of the newly amended CC&Rs & Bylaws will be distributed to Homeowners soon. They will also be made available to homeowners on the “HOA Records” page on the HOA website.
A Recount of Votes Policy was adopted during Tuesday’s regular Board meeting to help ensure that the Association will not be responsible for the costs associated with such a request. The policy mirrors Texas Property Code Section 209.0057(b), which requires any party making the request to pay all costs associated with a recount unless the recount changes the results of a vote, wherein the Association would then be responsible to reimburse the requesting party/parties.
This comes on the heels of a frivolous open-records request by a homeowner who was demanding that the Association (fellow homeowners) foot the bill for the time and materials invested for “all” records in the Association’s possession. However, just days before the request the Board adopted the Records Reproduction & Copying Policy in accordance with Texas Property Code requirements, which would have cost homeowners several hundreds of dollars, had the policy not been in place. After standing it’s ground to require payment from the homeowner in accordance with the policy and after a final threat of legal action by the homeowner against the Association, the Board closed the matter when the homeowner in question failed to respond within 30 days to a certified letter demanding prepayment.
The vote tally will occur during an open meeting of the Board where homeowners may come and observe. The process to tally the ballots was reviewed during Tuesday’s Board meeting to help ensure that the process will be open and transparent to help alleviate the need for any homeowner to question the results.
By unanimous consent of the Board, a ten percent (10%) increase in the Annual Assessment was approved during December 2, 2014, Regular Meeting of the Board. This is an increase of $29 bringing next years annual dues up from $290 to $319. While the Association runs on a fiscal calendar from October through September and while homeowners are billed for the Annual Assessment in June, the Assessment actually begins on January 1, which is the Board is required to vote in December.
Article 4.3(b) grants the Board the sole and exclusive authority to increase the annual assessment each year by as much as 10% over the preceding year’s annual assessment. Any increase over and above that increase must be by expressed approval by the Members in writing.
By unanimous consent, the Board adopted the first Fine and Enforcement Policy. This policy establishes the guidelines for the Board when enforcing the CC&Rs against homeowners who are out of compliance as well as the rights granted to homeowners under the law.
Article 7.15(a) of the CC&Rs establishes that fines assessed may not exceed the then in effect annual assessment, per violation. For homeowners, this means that beginning January 1, 2015, the maximum that any homeowner may be fined is $319 per violation, which is equal to the 2015 annual assessment. This does little to motive those who wish to disregard the restrictions and pay the penalty instead. This is why, the policy establishes that once the violator has reached the maximum allowable fine amount based on the set timetable, the immediate next step is for the Board to seek injunctive relief.
If successful, the non-compliant homeowner shall be accountable to the court from that point forward, for as long as they own the property. Therefore, the decision for the Board to file with the court now becomes the non-compliant homeowner’s to bear. Pursuant to the law, the homeowner will also be required to pay all legal costs associated with the case.
NOTE: Beginning January 1, 2012, the Texas Legislature enacted new laws governing HOAs in the Texas property Code, which requires all HOAs to adopt a Fine & Enforcement policy, among others. The Bylaws, under article 3.04, grant the Board the authority to adopt, publish and enforce rules and regulations (policies). The law firm of Horton & Archibald provided the Board with a set of draft-ready policies for the Board to adopt, which is the template that was used for this policy.
The 2011 Texas Legislature enacted major changes to the Texas Property Code, especially as it relates to HOA’s. These changes, most of which went into effect on January 1, 2012, have had a dramatic impact on Quail Creek and the manner in which we are governed. These changes have been highlighted in the attached document.
Do your HOA’s board members patrol the grounds with a cautcha-breakin’-the-rules mentality? One Michigan HOA resident thinks hers do.
She recently revealed that her HOA’s board members routinely cruise the grounds in golf carts noting minor breaches of the HOA’s rules. In her case, she was sent a note that the dog waste bag she’d set outside her garage (until she could remember to access the garage–and thus her garbage bin–through her unit) needed to be removed. Sure, she was probably breaking a rule for a few hours. But was it really necessary to send her a note?
Here, our experts explain whether boards can be too punctilious, irritating good neighbors and even pushing those owners away from volunteering and participating in HOA governance. We also offer tips on knowing when to mention violations and when to give owners time to correct the violations themselves.
When Vigilance Turns into Pickiness
“Overregulating is just as bad as not enforcing your governing documents,” explains Robert M. DeNichilo, an attorney at DeNichilo & Lindsley LLP in Irvine, Calif., who specializes in representing community associations. “Enforcement has to be reasonable. Is it reasonable to not give someone a chance to rectify a situation before you’re immediately on them?”
Violations are violations, right? So why shouldn’t you just kick out violation notice after violation notice if you see even a minor infraction? That can dampen community spirit. “It fosters the negative image that many people have of HOAs because they’re overregulated,” says DeNichilo. “HOAs are supposed to be preserving and maintaining property values. The whole goal is to make it a nice place to live. By overregulating, boards aren’t doing that. That’s why it falls into the category of unreasonable enforcement of CC&Rs.”
Of course, your board has to be aware of violations. “I think it’s good to be vigilant, but you can certainly take it too far,” agrees Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. “It’s a reasonable concern for an association or board to make sure they’re not allowing violations to go unchecked for lengthy periods of time and making sure there aren’t noxious or harmful things being left untended.”
The answer may be to make your inspections routine and expected. “We always encourage boards to do routine, community-wide inspections, unless they’re responding to some kind of complaint or concern,” says J. Roger Wood, an attorney with Carpenter, Hazlewood, Delgado & Wood PLC in Tucson, Ariz., who specializes in representing community associations. “In some communities it’s every six weeks. I have others that are more fastidious. But I don’t have any concerns about the golf cart drive-by as long as it’s what the community is expecting. Some HOAs are very strict. Obviously, when you’re driving by every day, there are going to be more letters. You’re going to catch people before they have a chance to do anything about the problem, and that’s frustrating to owners.”
How to Handle Violations
You can’t ignore owners’ violations. But are there instances in which you can give owners a little time to fix the problem? “The HOA is charged with enforcing the CC&Rs, and it has to enforce them equitably and consistently,” agrees DeNichilo. “So your actions depend on the violation. Everything goes back to being reasonable. Bagged dog poop left out is very different from someone who hasn’t sought approval starting a home construction project. One you have to act immediately on. But the other, is it really worth spending on the violation? If it hasn’t happened before, do you really need to send a letter?”
Drewes agrees that there are gradations of violations. “If there’s a violation that’s not dangerous or likely to cause panic in the streets and chaos to ensue–and the owner appears otherwise to be a law-abiding citizen–reason may say you may get away with giving them time to cure. Or you may knock on their door or call them.
“Sometimes people get a little defensive because the board is contacting them,” adds Drewes. “I had a situation where the board sent out a preemptive letter to six home owners who happened to have units on a street where there was no parking because the street’s on a tricky curve. One of those owners has had problems with the board in the past and immediately assumed she was being singled out. There will be those misunderstandings, and the best you can do is to try to be reasonable and send a nonthreatnening communication. It might say, ‘I noticed that… Please let us know if there was a reason or problem that led to that situation because we don’t want to run into complaints about it.'”
But you can’t ignore violations because you don’t want allegations that you’ve waived enforcement or you’re treating owners differently. “My advice is not to disregard violations that are brought to your attention,” says Drewes. “Think about whether they need to be addressed. What HOAs are specifically worried about is waiver. In Minnesota, that’s the voluntary relinquishment of a known right. Your behavior should be at least adequate to show that you’re not conceding a violation is OK.
“Maybe it’s OK if it’s something that occurs temporarily, but then you have to be cognizant of the fact that another owner might see the violation occurring or react negatively, thinking another owner is getting a break they didn’t or conclude they don’t have to comply with the rule themselves,” adds Drewes. “If you don’t have any written record that you followed up on the violation, you’re subject to the argument that you communicated it was OK or failed to communicate that it wasn’t OK. The argument will be that Joe got a letter, but Sally didn’t, and they’re treating Joe differently because of some protected classification. A well-meaning treatment of a violation can land an HOA in a tough spot.”
Drewes is dealing with a potential violation issue right now. “It’s a 55-and-over community, and the declaration says no children under 18 may stay more than 30 days in a calendar year,” he explains. “Nobody’s standing at the door checking names and days on the calendar to make sure it’s exactly 30 days. But the HOA does need to pay attention.”
Explain Your Violation Process
Be sure any notices you provide also explain the entire process of hearings and fines. “If you’re doing routine inspections, you should have an enforcement process to go with it so owners know what’s going to happen,” says Wood. “A knee-jerk board fining owners for thousands of dollars of violations before it gives owners a chance to cure–that’s a problem.
“Be courteous in giving people time to correct the problem so they know the first violation isn’t the death knell,” adds Wood. “If you’re inspecting regularly, the letters have to be equally friendly, saying something like, ‘We’ll come back in another three weeks, and it’ll probably be fixed by then.’ You’ll always catch people after the infraction if you’re doing routine inspections. What happens in that next step is where boards run afoul of the law and courtesy to their neighbors.”
Also remember that you’re not an HOA czar. “Sometimes board members think being a director gives them powers,” says DeNichilo. “But the source of the board’s power comes from acting together. When board members are walking around and spotting violations, they should report them to management just like any other home owner would. Then the board would get together and review them to determine whether to send violation notices.”
Posted August 2011